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Events of the past weeks have led some to believe that the problems facing legal education in Ghana are caused by non-compliance with laws. That belief is unfounded. In fact, legality is not even one of the problems. The real problems facing legal education in Ghana today include expired approach to teaching, poor teacher-student ratio, poor access to trending learning materials, weak research base and unworkable rules on admission to the bar. All these lead to a very hectic, costly, almost-oppressive and highly unpredictable legal education process.

Efforts at Solution

Varied efforts have been made by the General Legal Council (GLC) and other stakeholders to help solve the problems. These efforts include the construction of a new law school building at the University of Ghana (UG), the renovation of the Ghana School of Law (GSL) facility in Makola, plans to build an ultramodern GSL training facility at Legon, prohibition of non-PhD-holders from teaching law in UG, recruitment of more lecturers at both UG and GSL, etc. However, the most dramatic effort is what may be called ‘democratisation of the LL.B. program’. This saw a paradigm shift from the policy which gave exclusive mandate to UG to award the LL.B. degree to the current situation where almost every degree-awarding institution may.

However, the democratisation process did not come without its own attending challenges. It has seen more LL.B. degree holders willing to be enrolled at the bar than the GSL could admit for professional training. To solve this problem, the GLC had to increase admissions to the GLS from a little over 50 in the early 2000s to about 250 last year. This move also came with the creation, in 2011, of 2 outstation campuses of the GSL, one in Kumasi and another in eastern Accra. At a point, the GSL also used a quota system of admission, where each LL.B. awarding university was given a quota in respect of the number of their LLB graduates to send to the GSL.

Automatic Admission

From this background, it may be pretty much obvious that the problems facing legal education has grown in genre and scope, giving birth to all manner of activists trying furiously, though in good faith, to fight for change. It is, however, even more obvious that the problem that concerns the activists most is not any of the above, but rather one that has to do with the number of persons that may be admitted to the bar each year. This claim is evidenced by events characterising this year’s GSL admission process, where activists have asked that all the over 3,000 LL.B. holders in Ghana be admitted to the GSL without any further criteria for scrutiny.

There may be many arguments in favour or against the automatic admission campaign. However, only a very few persons may deny the fact that the campaign is mono-dimensional as it seems to have no regard for the other more serious problems facing legal education in the country, e.g., quality of training. Indeed, one may even say that the automatic admission campaign bears strong features of fundamentalism and overly-generous obsession with high numbers and only diverts attention from the more serious problems.

Deinstitutionalisation

Another call that is often made towards the resolution of the problem is one which calls for deinstitutionalisation of the professional bar training program. This call would see the abolishing of the GSL and the reconstitution of the GLC’s Board of Legal Education into an examination (rather than a training) body. Of course, this appears to be a more progressive approach when all is said and done. The question, however, is how the deinstitutionalisation approach would resolve the number problem, which it is often proffered to solve?

In answering this question, the apostles of deinstitutionalisation would say that the teeming number of universities running law programs would develop the capacity to absorb and handle the numbers. This is true; but only true if one assumes that the law student’s only and ultimate interest is having legal training for the sake of it. The argument hardly speaks to the issue of numbers when taken in its proper context, which is that the average law student’s ultimate interest is to become a lawyer and not just to have legal training. To become a lawyer, the law student must move beyond professional legal training (to be offered by the universities) to being enrolled at the bar. Therefore, while the various universities may have the capacity to offer professional legal training to the teeming number of persons seeking to become lawyers, they have no power whatsoever to determine which or how many of their many graduates end up becoming lawyers.

The power to admit persons to the bar vests solely with the GLC. This also means that it is only the GLC (not the universities) that could resolve the number issue. It also means that no serious progress could be made in respect of numbers unless the GLC is convinced that Ghana needs more than the current 250 new lawyers being admitted in a year. From this background, therefore, the deinstitutionalisation approach, like its predecessor democratisation of LL.B. approach, unless coupled with a deliberate and concerted effort at convincing the GLC to increase the number of persons admitted to the bar, would merely portend another situation where an army of “trained lawyers” would wait in agony and frustration, perhaps, forever to be admitted to the bar.

Way Forward

Going forward, it behoves stakeholder of legal education in Ghana to take steps to have a comprehensive dialogue leading to practicable proposals to the GLC in respect of the following:

Preferred teaching approach in law schools;

Minimum qualification for law teachers;

Minimum qualification for admission to the LL.B. program;

Accreditation criteria for institutions that will award LL.B. degrees;

Deinstitutionalisation of professional law training program;

Ghana’s need for lawyers, leading to an objectively determined number of lawyers to be admitted to the bar each year for the next 10 years;

Effective pupillage program; and

Cost of legal education.

The stakeholders to this dialogue should include the following:

The General Legal Council,

The Ghana Bar Association,

The National Accreditation Board,

Deans and directors of law faculties and schools;

The National Union of Ghana Students (and law student associations),

Law teachers’ associations, and

Proprietors of law schools.

Conclusion

In all, it may not be false to say that the current agitation over the number of persons to be admitted to the Ghana bar would see no end until and unless the GLC is convinced with credible evidence that Ghana needs more lawyers than the current rate of enrolment. Such evidence, sure, would not come from dry legal arguments of doubtful integrity. Such evidence may only be had from sound economic, social and political policy analysis and considerations.

Our Supreme Court has done it again! It seems to have behaved like the proverbial ‘veritable octopus,’ stretching its tentacles to assume jurisdiction over a matter which is clearly out of its original exclusive jurisdiction. As if that was not enough, the Court has given a judgement that has successfully entrenched the common-held view that the honourable Court is in a dire need of consistency and judicial humility.

This note seeks to show that the Supreme Court did not have jurisdiction over the Asare v General Legal Counsel & Ors in the first place.

Judicial Review Generally

Article 2 of the 1992 Constitution codifies the doctrine of judicial review as established by the landmark case of Marbury v. Madison (1803). In that case, Justice Marshall stated that:

“If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

The essence of this statement is that the Constitution is the sole standard for exercising a supreme court’s power of judicial review. It is exactly this doctrine that is codified in Article 2 of our Constitution.

Judicial Review in Ghana

So, Article 2(1) says that:

“A person who alleges that (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

From this provision one may glean out the following elements, which must be satisfied in order to successfully invoke the Supreme Court’s Article 2 jurisdiction. In other words, for a plaintiff to invoke the Article 2 jurisdiction of the Supreme Court, she must show the following:

That there is an allegation of violation;

That that allegation of violation is in the form of:

A contravention, or

An inconsistency;

That the alleged violation stems from at least 1 of 2 principal sources, namely:

From an enactment; or

From a person.

That where the alleged violation stems from an enactment, it is either:

From the content of the enactment (without more); or

From a conduct done under or pursuant to the authority of an enactment.

That where the alleged violation stems from a person, it is either through:

A person’s action; or

A person’s inaction.

That whatever nature the alleged violation may take from 1 to 5, it should be a violation of the Constitution and nothing else.

In fact, that is the reason why Article 2 claims must always allege an unconstitutionality – meaning the constitution (and nothing else) is the sole standard of evaluation.

Un-constitutionality

It is true that any illegal act or omission may also be a violation of one of the many principles in the Constitution, but it would be an abuse of language and, of course, the concept of judicial review to suggest that a person who steals my iPhone has committed an unconstitutionality, having violated my right to property under Article 20 of the Constitution.

It is exactly the prevention of this possible abuse (of every legal wrong coming to the Supreme Court for judicial review) that the Supreme Court itself insists strongly in a long line of cases that where the Supreme Court has concurrent jurisdiction with another court over a matter, the Supreme Court would relinquish jurisdiction to that other court. In fact, it is for this reason that the Supreme Court’s Article 2 jurisdiction called “exclusive original jurisdiction.”

Asare v GLC Jurisdiction

Now, the question is this: what is the dominant feature of the violation which the Plaintiff in Asare v GLC & Ors. alleged? To all intents and purposes, the allegation is primarily one which says that the defendants have acted, are still acting and, unless restrained, would continue to act outside their enabling Act, Act 32, or its subsidiary legislation, L.I. 1296. And, even though such violations may derivatively result in an inconsistency or even a contravention of a principle in the Constitution, it is an abuse of the term ‘judicial review’ to suggest that that act or omission is unconstitutional.

In other words, the Supreme Court, as a matter law and in accordance with its own established jurisprudence, did not have and should not have assumed an exclusive original jurisdiction over the plaint. The plaint should have been referred to the High Court which has original jurisdiction to determine such administrative (rather than constitutional) matters.

Conclusion

Until and unless the Honourable Supreme Court begins to take some of these jurisdictional issues more seriously, it would continue to exude an air of inconsistency and judicial tyranny, while at the same time weakening not just itself, but also all the Courts and other administrative bodies below it.

Apparently, there is a raging social media debate on Article 8 of the Constitution. That Article allows Ghanaians to be dual citizens. However, it bars dual citizens from holding certain public offices. For example, a dual citizen cannot become President or Vice, Ambassador or High Commissioner, Member of Parliament, Inspector-General of Police, Chief of Defence Staff, etc.

Dual Citizen

A dual citizen is a person who is a citizen of two countries. Within this context, a Ghanaian is a dual citizen if he holds the citizenship of a country in addition to that of Ghana at the same time. The beginning point of the discussion (which is also the basic rule) is that every person automatically owes allegiance to the country of which he is a citizen. This also means that a dual citizen owes allegiance to two (or more) countries. At the core of the discussion, therefore, is the question of ‘allegiance.’ Consequently, one’s understanding of ‘allegiance’ within this context is very fundamental to the discussion. I’ll be explaining ‘allegiance’ very soon; but before that let me just quickly scope out the debate.

The Debate Sides

One side of the discussion – the inclusion view – argues that there is no real gain in barring dual citizens from holding these public offices. To them, dual citizens, if allowed to hold these key offices, may well be the solution to Ghana’s endless train of problems. This is because duals have enormous talents and expertise which they could bring to bear on those offices. “Without occupying those offices,” the argument goes, “dual citizens can’t contribute sufficiently to solving Ghana’s problems.” Based on this, the inclusionists accuse the exclusionists as inward-looking folks who fear competition.

The other side of the debate – the exclusion view – defends the bar as very helpful in preventing treachery. To the exclusionists, a mono-citizen cannot or is less likely to betray his country than a dual since he owes allegiance to only one sovereign. To the treachery argument in particular, the inclusionists would retort that in a country where poverty is rife, a mono could more easily betray her country than a dual. Indeed, that may be very true, considering the way boys are hungry these days, they could sell anything. The exclusionists’ pushback is that: well, if you think dual citizenship doesn’t have a downside, then, single citizenship would also not have an advantage; so, nationality as a whole shouldn’t matter in getting people into public offices – let’s just throw all these nationality issues away and look for competence only, even for the presidency!

I, myself, am confused as to which side of the debate to belong. Therefore, the purpose of this short note is not to suggest, propose or indicate, even remotely, the better of the two sides. I only wish to, in my own small way, make the debate a little more informed.

Allegiance not an Emotive Concept

Okay; as one could already observe from these snippets of arguments, both sides of the discussion have been very creative, committed and forceful in making their case. Interestingly, these snippets of arguments also tell us that their forcefulness, though admirable, is premised on an honest misconstruction of the most critical element in the discussion – ‘allegiance.’ They seem to give ‘allegiance’ an emotive meaning only. To them, allegiance is the feeling of loyalty, fidelity or faithfulness towards a country. So, they often use football game to illustrate their arguments whether for or against. They ask questions like: how would Milovan Rajevac feel while coaching Ghana in a football match between Ghana and his country, Serbia (I think, I saw this one in the Asare v A-G case or so)? They also would ask – how did Jerome Boateng feel about playing for Germany against Ghana?

Indeed, how a person feels in these situations matters in measuring their output and commitment. However, I’m not particularly sure how that feeling translates into how ‘allegiance’ is determined in this context. I’m encouraged to say that ‘allegiance’ as used within the context of citizenship is too serious a matter to be left to feelings and emotions; not least because there is no art to find a man’s feeling on his face.

Allegiance is Juridical

‘Allegiance’ go way beyond these emotive attributes. It doesn’t simply connote a feeling of indebtedness, fidelity or loyalty. Rather, the word carries with it a bundle of well-defined legal incidents and consequences. It usually entails defined duties of a citizen to her country. It equally entails the rights of a country to punish the citizen should she fail in performing those duties. It speaks directly to the question of State protection to citizens as well. At law, it is what a citizen gives in return for the protection that her country provides her.

For instance, a citizen has a duty to defend the constitution of his country and, usually, to defend the government which is, for the time being, in place. On the other hand, the country has the right to commit the citizen for treason and punish her as such should she do anything that betrays this duty. It goes without saying, too, generally, that a non-citizen cannot commit treason – he doesn’t owe allegiance to the sovereign in question. This is a well-established rule under both domestic and international law. To this end, a person’s allegiance to a country is determined by such objective (rather than subjective or emotive) criteria as citizenship, domicile, etc.

So, in Carlisle v. US (1872) for example, a group of aliens were manufacturing and selling gunpowder to the rebel Confederate army to enable them overthrow the federal government. These guys were doing pure business. They didn’t have any special feeling towards any of the waring parties. As a matter of fact, they could and were ready to sell to both sides. The US Supreme Court held as follows:

“He who, being bound by his allegiance to a government, sells goods to the agent of an armed combination to overthrow that government, knowing that the purchaser buys them for that treasonable purpose, is himself guilty of treason or a misprision thereof.”

Of a more current and comprehensive help is the English case of Joyce v DPP (1946). Here the accused person, an American citizen who also held British passport was caught translating English news for the Nazi during World War II. No one knew his feelings. The key issue that came before the House of Lords was whether a person who held a passport (but who is merely a naturalised citizen) owes allegiance to His Majesty, the King of England. Answering this question, Lord Jowitt LC said:

“In these circumstances, I am clearly of the opinion that so long as he holds the passport he is within the meaning of the statute a man who, if he is adherent to the King’s enemies in the realm or elsewhere commits an act of treason.”

Joyce v DPP is also the authority for saying that passport is conclusive evidence of allegiance; so that an MP who holds a passport of another country owes allegiance to that country, for which reason she should be removed from Parliament and punished for perjury.

From these 2 cases alone (and there are a litany), I’ve found that ‘allegiance’ is a juridical (rather than emotive) construct. It’s not determined by the subjective criteria of how the person really feels about a country, but rather by clearly stated objective criteria of facts, law or facts mixed with law – citizenship, holding of passport, domicile, etc, – all of which entitles a person to the protection of the sovereign. This is no brainer, the fact that a person feels great about Russia doesn’t mean that he owes allegiance to Russia. And the fact that you’re Gambian doesn’t also mean that you feel love for the Gambia; but you’re held at law, conclusively, to owe allegiance to the Gambia. How, then, may one justify the claim that ‘allegiance’ is an emotive concept?

Countries and Dual Citizenship

A dual citizen may be likened to a servant of two masters. His acts don’t really affect him. They more affect the relationship between the two masters. It also has the potential of limiting what each master may do in respect of this dual-servant. Masters don’t like that. Because of this, even the most liberal countries of the world look at dual citizenship with suspicion. It has always been the case. So, the US Department of State, for instance, would say “the U.S. Government does not encourage dual nationality … Claims of other countries upon U.S. dual-nationals often place them in situations where their obligations to one country are in conflict with the laws of the other.” In fact, other countries don’t allow it at all.

Illustration: What if your energy minister was a dual citizen – Ghanaian and American; and, then, the US (as it usually does) bars its citizens from dealing with the GNPC and Ghana Gas Limited. This, obviously, would have nothing to do with how the minister feels about Ghana or the US. Ghana would have to choose between extraditing the minister to the US (and fail in its primary duty to protect its citizen) or keep him here to continue working with GNPC (and face international sanctions from the US). This is just one of the ways in which dual citizenship may frustrate the relationship between two countries.

Okay, I have to go now. Having said this, I believe the debate could proceed.

It is outrightly unlawful for a lawyer to inform the pubic of his previous successes in his professional practice with the aim of attracting briefs in the future. This is because Rule 2 of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (LI 613) prohibits lawyers from touting, advertising or otherwise doing anything that may be seen “as calculated to attract business unfairly.”

Interestingly, while some call on the incoming Chief Justice, Her Ladyship, Justice Sophia Akuffo, to “break this old curse,” the former President of the African Court on Human and Peoples’ Rights rather boldly announced at his vetting in Parliament how “distasteful” she finds the campaign against the rule. Clearly, if this rule would be scrapped, it definitely won’t come from the General Legal Council of which Her Ladyship would be head for the next two or so years.

But, what at all is the basis or essence of this rule? Well, one could not understand the Rule’s utility unless we wind back our minds to pre-medieval England; that is to say, the years immediately preceding 1400 AD.

A great point to approach history, they say, is to begin from the known to the unknown. Most of us are familiar with the chorister’s or the academic robe. The main difference between these robes and a lawyer’s is that the later has a stupid piece of violin-shaped cloth attached to the back of its left shoulders with a long silly strap running along the left breast down to the feet. The former robes don’t. That piece of cloth at the shoulders is cut into a pair of cute little sacks. These sacks used to be the money sack for lawyers – one for silver coins the other for gold. It’s actually called the “money bag.”

The theory behind this mysterious pair of sacks was that law practice was purely a noble selfless public service profession. It was neither for money nor for profit. Because of this, lawyers could never charge fees. In fact, it is said that “the gentlemanly barrister would not lower himself to ask clients for money.” Clients only made voluntary ex gratia donations which they surreptitiously dropped into these sacks. Remember, the pair of sacks hang loosely behind him; meaning he could not feel, know or be influenced by how much a client dropped in. Money was completely irrelevant!

Now the catch: since professional law practice for most part of its life was noble and not for profit, open competition was never a sensible thing to do, entertain let alone encourage. Therefore, it made sense to prohibit touting and advertising among lawyers. As a matter of fact, advertising or touting was as ignoble, base and unprofessional as asking clients for money. This is the only (if not the main) reason why Rule 2 exists in Ghana in 2017.

Assuming (without admitting) that this medieval reason for the Rule is still valid in this IT age, the question, however, would be: why does the General Legal Council find it noble for lawyers to now lower themselves and ask clients for money but ignoble for them to advertise their services? Perhaps, the answer to this question would never come.

I had a discussion with my friends on Facebook yesterday. The discussion was over the news that Rwanda’s Parliament has reduced the minimum period of maternity leave (ML). The general sentiments I gleaned from the comments on the post which broadcast the news ranged from mild disapproval, through shock to extreme anger. Of course, that is understandable – rights may be enlarged (not abridged).

Most of the commenters on the post seemed to hold the view that longer ML is mainly beneficial to the mother involved. Reducing it, therefore, is to her disadvantage; and should not be countenanced. I made a few comments under the post but lost track of the discussion due to the speed at which the comments came raining in (and, probably, even due more the bread-n-butter issues at hand at the time). So, I decided to rather do a blog skirting my views on the matter.

Let me begin by saying that the advantages of ML cannot be overemphasised. And, on the question of who, between the employer and the mother, benefits most from longer maternity leave, I seem to have a slightly different view. Having managed workers for some time now, I have no doubt whatsoever in my mind that ML is even more beneficial to the employer than to the mother involved. Trust me, there is no point having “at work” a worker 98% of whose already-tired attention is on her child several miles away back home.

However, we will be either arguing fundamentalism or be a little too naive to base our analysis of the issue of ML duration on the above dimension only. I think the other critical dimension to the issue is the practical challenge that attends the private small-scale investor-entrepreneur employer, whose primary focus is to make returns on her already small capital within the short term in a wobbly economy like ours.

The primary aim of women’s right activists like us is to afford as much dignity and relief as possible for mothers at all times. But, the entrepreneur, particularly those in our highly perilous third world economies characterised with massive unemployment rates, is so much unlike us. He is faced with 2 real economic options: to either (1) employ a male who will work around the clock all year for many years; or (2) employ a female who will take 6 months ML in every 2 years on the average. Starkly faced with this reality, a private employer (even with substantial women’s rights acumen, would not find a difficulty in making a choice – employ a male worker.

So, if Rwanda, which has the most female-dominated Parliament in the world, decides to make a law reducing maternity leave from 13 weeks to 6 weeks (as I understand it), they probably are trying to solve another serious problem – female unemployment.

Workplace crèches and nurseries are often proposed as one of the solutions to the problem. That is cool, because the mother is will focus more on work, knowing that her child is just steps away. But that, too, would hardly be a prudent economic option for our small-scale employer employing 3 to 5 women who may not all be breastfeeding at the same time.

This brings to mind one other point – paternity leave (PL): You see, one of the great but less-cited advantages of PL is that it leaves the employer with no real advantage of employing a man over a woman, all things being equal. Indeed, PL does check gender discrimination in employment situations 🙂

In my previous note on this issue, I mused in support of the claim that that a constitution does not represent the true aspirations, values or ideals (ideas) of the whole of the people as we are often made to believe. I explained that a constitution is, rather, a bundle of the ideas of the ruling class of the time. A constitution is also a parochial arrangement between and among the ruling class only.

That arrangement expressly excludes the ruled, the masses, from the government of the polity. In order to pacify the masses (for excluding them from government), the ruling class invented a mechanism called ‘regular election,’ where the masses are allowed to choose one ruling class from the others. Like a typical idea of the ruling class, regular election is constitutionalised.

In this note, I will use Vladimir Lenin’s analytic to explain why election is a sham just as the constitution which contains it.

According to Lenin, “the oppressed are allowed once every few years to decide which particular representatives of the oppressing class are to represent and repress them.” By this statement, one may notice that Lenin divides society into 2 classes: (a) the oppressor-ruler-politician; and (b) the oppressed-ruled-voter. This division, itself, is in accordance with classical Marxist theory which finds an ongoing struggle between the two classes.

If Lenin’s statement is anything to go by, then, one may say that any person or group of persons who, habitually, put themselves up for election to a public office fall within the oppressor class. By this stretch, one may notice, too, that political parties and their leader, whether in power or in opposition, are oppressors; the only difference being that those in power are oppressors at present while those in opposition, are oppressors in waiting.

Coming home, there are 2 main political parties in our polity – the NDC and the NPP. Both parties have ruled the polity and have, at all material times, maintained their readiness to rule. By this, we may say that the two parties have attained the minimum level of harbituality required to be classified as a part of the oppressing class – the NDC at present and the NPP in waiting.

So, once every four years, we are allowed by our Constitution to, through election, decide which of the two divisions of oppressing class, the NPP or the NDC, is to represent and repress us, the people, for the next four years.

We are often told that the constitution, our constitution, is the epitome of our (all of us) ideals, values and aspirations. By this, it is assumed, at least, that the ideas of every recognisable unit of our polity as to how to structure and deploy government is represented and reflected in the Constitution; and, subsequently, in the laws of the polity.

According to Marx, however, no set of ideas (values, ideals and aspirations) has ever reflected the true ideas of all the recognisable units of the polity. Rather, “the ruling ideas of every epoch in a polity are the ideas of the ruling class of that epoch.”

In every period in the history of polities, there has only been one ruling class. This ruling class may have several departments; but it is still the ruling class. The ruling class, according to classical Marxist theory, is in constant struggle with the class of the ruled, the oppressed. The ruling class, the theory continues, is the class that owns and controls the resources and the other factors of production in the polity. The other class, the ruled, are nothing but a factor of production – labour – in the hands of the ruling class to used. How does this analytic play out in the making of constitutions?

Well, let’s begin by saying that constitutions are made up of big ideas. Second, big ideas are a product of big thinking. Third, by the very nature of the roles that the classes play, the habit of ‘thinking big’ becomes a luxury. Fourth, by the nature of the relationship and the respective roles of the classes, only the ruling class (call them the bourgeoisie) could afford the luxury of thinking big. The class of the ruled (call them the proletariat), on the other hand, is preoccupied with the habitual thoughts of the next meal (the source of strength for the next day’s labour).

Therefore, to the extent that the constitution is a set of ideas put together and ascribed the status of supreme law, the constitution of every polity (and the entire legal system which rests on it) in every era becomes nothing but a bundle of the ideas (values, ideals and aspirations) of only the ruling class of that era. This is true on both the micro and the macro levels. On a micro level, for instance, the ideas expressed in the 1992 Constitution as law are nothing but the ideas of the ruling class of the era – the PNDC.

On a macro level, take the idea that governmental power should be separated into 3 departments, for example. Separation of powers is nothing but a parochial arrangement between the various departments of the ruling class – the monarch, the MP and the judges – as to how to share power and harmonise the relationship between and among themselves and themselves alone. Separation of powers does not involve the people. Rather, the people are alienated and, in order to keep them at bay, pacified by another mechanism – elections.

In life, generally, we are often encouraged to think outside the box. Whatever that means, the position in the murky world of legal of reasoning is different. In legal reasoning, one is not to reason outside the box unless she completely exhausts the space within the box. In other words, the creation of a new legal rule or a legal fiction should be the last resort in resolving legal problems.

New Law

In Amidu v A-G, Waterville & Woyome (No. 2), the Supreme Court (the “Court”), constituted by a single Justice of the Court, seems to have created a new legal rule, a kind of legal fiction. The learned Justice admitted this when he cited that hallowed passage in Tuffour v A-G as authority for his liberal interpretation of Article 2 of the Constitution. The new rule may be stated as follows:

The right to enforce the Constitution includes the right to enforce an order of the Court enforcing a provision of the Constitution.

This rule is so so that a person who has the right to invoke the enforcement jurisdiction of the Court on a particular issue is deemed as also having the right to personally enforce the execution of the order made by the Court pursuant to the enforcement jurisdiction.

My Claims

In my previous article on this issue, I explained that the Court has, without more, created a qui tam jurisdiction in the Republic. In this article, I make 2 other claims. The first is that the Court, constituted by a single Justice of the Court, has no jurisdiction to interpret Article 2 of the Constitution. My second claim is that, even if the Court did have jurisdiction, there was no need for it to create that new legal rule. For want of space, however, I will limit this discussion to the second claim, not least because I think it is also the most difficult of the 2 claims.

Constitution versus Court Orders

Hon Amidu’s action was hinged on Article 2 of the Constitution. Article 2 deals with enforcement of the Constitution. This means that a person may rely on Article 2 to commence an action for the enforcement of “a provision of this Constitution.” Article 2, at least on the face of it, does not deal with the enforcement of the Court’s orders. There are 2 reasons why Article 2 does not and may not be a basis for enforcing the Court’s order.

The first is that there is a difference between the provisions of the Constitution, on one hand, and the Court’s orders, on the other. Even though the Court’s Article 2 order is always consequent upon its interpretation or application of the provision of the Constitution, the enforcement of those orders involves entirely different consideration, both substantive and procedural, than the factors that the Court considers when it is called upon to enforce a provision of the Constitution.

The second reason is that the Court, when exercising its enforcement jurisdiction, has, itself, the power to order an appropriate person (including the President) to enforce its orders. Therefore, a proper exercise of the Court’s enforcement power should not give rise to a situation where (as here) a new legal rule would have to be created constituting a private person into a public or quasi-public official just to get the Court’s order enforced. In other words, when the Court properly exercises its enforcement powers, the order it gives, without more, becomes a binding legal duty on a person already clothed with public power.

Duty to Enforce

This legal duty, too, comes with at least 3 cardinal incidents: The first incident is that the duty is public (rather than private) in nature. This derives from the fact that a constitutional matter is a public matter; and, conceptually, cannot give birth to an order directed at or enforceable by a private person. The duty to enforce such an order, naturally, could only be performed by a public officer, not a private person.

The second incident of the duty is that the public officer has no discretion in her performance of the duty. This derives from the principle that a public official has no discretion when directed by a court of competent jurisdiction to perform a public function. Indeed, such a public official is bound to perform the duty strictly, precisely and exactly in accordance with the terms of the Court’s order, even if the order is void or voidable.

The third (and last) incident of the duty is that refusal by the public officer (even if that officer is the President) to obey or carry it out precisely and exactly in the terms of the Court’s order constitutes a high crime under the Constitution.

The Substantive Order

From the above, it may be pretty obvious that everything depends on the nature and terms of the Court order in question. The issue, then, is: what is the nature of the Court’s order in the substantive case, that is, the case whose judgement Hon. Amidu now seeks to enforce? In the substantive case, the Court made 3 declarations and only one order. The order states as follows:

“An order directed at the 3rd Defendant [Mr. Woyome] to refund to the Republic of Ghana all sums of money paid to him upon or as a result of the unconstitutional conduct of the 1st Respondent, therein 1st Defendant [the Attorney-General], in purported pursuance of the said inoperative Agreement dated 26 April 2006.”

Indeed, there is nothing wrong with this order until one begins to realise (as we all now have) that the order is directed at the judgment-debtor to pay; and that there is no specific or precise order directed at any public officer to enforce payment. This deficiency (as to “who” should enforce), in itself, is not fatal to the course – the Attorney-General is not without a duty to enforce payment on the ground only that the Court did not expressly say so. This is because (and as Hohfeldian correlatives tell us): to every legal duty there is a correlative legal right and vice versa. Therefore, a duty on a judgement-debtor to pay creates a concomitant right in the judgement-creditor to enforcement payment.

In respect of time of payment, too, lack of express timelines does not mean that the payment may be made at the behest of the judgement-debtor. This is because, one may, again, recall that where (as here) time is of the essence and there is no time given, reasonable time is the time which will apply. Going forward, one may say that the questions of “who” bears the duty and “when” to perform the duty are not unanswered. Indeed, the Attorney-General (a public officer) is under a duty to collect the monies from the judgement-debtor for the Republic within a reasonable time.

How to Enforce

This leaves us with the question of “how” to perform the duty. And this is exactly where Order 46 of CI 47 comes in. The relevant part of the Order says that:

“… where a person has obtained a judgment or order for the payment of money by some other person, hereinafter referred to as “the judgment debtor”, the Court may, on all application made ex-parte by the person entitled to enforce the judgment or order, order the judgment debtor to attend before the Court and be orally examined on the questions …”

There is no doubt that “the person entitled to enforce the judgment or order” on behalf of the Republic here is the Attorney-General or another public officer acting on her advice or directive. Indeed, there are more than one ways by which the Attorney-General may perform this duty; and there is some evidence that the Attorney-General has been using some collection methods.

However, it appears (and Hon Amidu deposes so before the Court) that the Attorney-General has, either unwilling or unable, failed to enforce the Courts orders, at least, in the manner that Hon Amidu expects her to. Indeed, if it is the view of Hon Amidu or another citizen that Order 46 is the best or, even, the only method of enforcing payment, the existing legal regime is not silent on “how” to get the Attorney-General or another public officer to use that method. Particularly, the Civil procedure rules allows a party to:

“upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within that person’s knowledge or could not be produced by that person at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, apply for a review of the judgment or order.”

An application under this rule allows the Court to review and revise its previous order and to make new orders to give proper effect and meaning to its judgement. This rule therefore offers an avenue for the Court to make, if it so wishes, specific orders directed at the Attorney-General, including an order to her to adopt the Order 46 method to enforcing payment.

If the Court does so, the Attorney-General would, as it were, be torn between the choices of committing high crime or obeying the Court’s order. This, no doubt, would have delivered the same result of getting the judgement enforced by the Order 46 methodology without necessarily creating a new rule, which in turn puts the Court’s ruling at war with well-established jurisdictional and jurisprudential positions.

Outside the Box

It seems obvious, therefore, that the Court has absolutely no reason to create a new rule to solve a problem for which a solution already exists at law. In other words, the Court has not exhausted the space within the box before venturing into creating the new legal rule; and, most importantly, doing so without being certain of its jurisdiction.

You have heard of the writ of certiorari, the writ of mandamus, the writ of habeas corpus, and other similar writs. But I bet you have never heard of the writ of qui tam. There is a reason. The writ of qui tam is an old form of action in England & Wales. ‘Qui tam’ is the short form for the Latin phrase ‘qui tam pro domino rege quam pro se ipso in hac parte sequitur’, meaning ‘he who sues in this matter for the King as well as for himself.’

Generally, all criminal and civil prosecutions of and for the King are to be carried out by the Attorney-General only and only her. This position of the law was handed down to all common law countries, including Ghana. However, the writ of qui tam allows a private person to prosecute a case, usually involving some pecuniary loss to the King, on behalf of the King without necessarily having recourse to the A-G. When she wins, the private person is entitled to a share, usually a third, of the recovery as of right.

For a writ of qui tam to apply to a transaction, it must be specifically provided by law. So in 1381, for instance, it was enacted under King Edward II that:

“… no officer in City or in Borough … shall merchandise for Wines … And if any do, and be thereof convict, the Merchandize whereof he is convict shall be forfeit to the King, and the third part thereof shall be delivered to the Party that sued the Offender, as the King’s Gift …”

A similar law was enacted in in the Commonwealth of Massachusetts in 1686 under King James II and VII, where “penalties for fraud in the sale of bread [are] to be distributed one third to inspector who discovered the fraud and the remainder for the benefit of the town where the offense occurred.” President Lincoln would in, I think, 1863 cause a law to be enacted in a similar light to deal with corrupt war profiteering.

In 1943, however, qui tam was substantially curtailed in the US. An aspect of the old writ would, however, be re-introduced and expanded beyond government contacts to the private financial sector in 2010 by the False Claims Act. In the meantime, the writ was, for good reasons, completely abolished in England & Wales by the Common Informers Act (14 & 15 Geo. 6, c. 39) in 1951 and never revived.

I have found no evidence that the writ of qui tam entered into the Ghana (or Gold Coast) legal system as a statute of general application. Neither was the Supreme Court of the Gold Coast (the predecessor of the current Superior Court of Judicature of Ghana) endowed under the Gold Coast Courts Ordinance Cap. 4 (1876) with the inherent jurisdiction over this form of action. Also, I have not found that the writ has entered into a common law jurisdiction as a statute of general application under any of the UK Judicature Acts.

Therefore, the Supreme Court’s decision this morning, at least, raises a number of questions worth the attention of students of law, namely:

What is the jurisdictional basis for the Supreme Court’s decision?

What does the Constitution say about the power to prosecute claims for and on behalf of the State? Does the Constitution contemplate an exception to the general rule in Article 88? If so, under what circumstances may the exception kick in?

Does the fact that the Whistleblowers Act (which follows the spirit of the qui tam cause) retains the power of prosecution of public wrongs for the A-G alone speak to the question?

Is the Court creating a new form of action? If so, what is the constitutional basis for such creativity (desirable, though, it may be), having in mind that courts and their jurisdiction are creatures of statute?

Indeed accountability is good, but there is no greater danger to democracy than unlimited power, particularly of unelected power-holders, judges.

Having omitted in 2014 to expressly seek the deletion of what has come to be known as the ‘NHIS names’ from the voters register, the Plaintiffs in the Ramadan case returned to the Supreme Court (the ‘Court’) earlier this year, election year, to complete what they began. This time, they expressly asked the court to, among others, either set aside the entire voters register as void; or in the alternative make “an order compelling the Electoral Commission to audit the current register of voters through the validation of the registration of each person currently on the register … [and] to delete the names of unqualified persons …” By ‘unqualified persons’, I believe, the Plaintiffs mean person who registered with the NHIS cards.

In this two-part article, I will offer a defence to the decision of the Supreme Court in the Ramadan case refusing to order the automatic deletion of NHIS names from the voters register. In doing this, I will attempt to foil the attacks that have been variously mounted against the decision. Particularly, I will conclude that (1) under our Constitution, an act or its consequences are not necessarily or automatically void even if the law under which they were done becomes void; and, (2) public law (like private law) does, indeed, admit of the the concept of ‘voidable.’

B. THE ‘AUTO VIEW’

A law is unconstitutional if it is found to be inconsistent with any provision of the Constitution. According to our Constitution, such a law, “to the extent of the inconsistency [is] void.” Ordinarily, if a thing is void, then, it is ineffectual, it is nugatory, it has no legal or binding force. Therefore, by the very provision of the Constitution, particularly Article 1(2), any law which is unconstitutional is also automatically void ab initio.

By asking the court for that relief, therefore, the Plaintiffs were labouring under the understanding that everything which is void is void ab initio. The consequence of that understanding is that the relevant law as well as every act that is done in pursuance of such a law is deemed as though it was never done. It never was in the eyes of the law. Such an act is incurably bad and cannot yield any fruit whatsoever. After all (and as most classical lawyers would insist), “you cannot put something on nothing and expect it to stand” (much apologies to Macfoy v. U.A.C. (1962) and its Ghanaian offspring, Mosi v Bagyina (1963)). For the purposes of simplicity, I will refer to this understanding of ‘void’ as the ‘auto view’, not the least because it assumes that an act which is made under a law which is subsequently declared void is also void automatically.

Going by the auto view, persons who were registered by the EC using NHIS cards were never registered. In the eyes of the law, they are not on the register, right from the day of their purported registration. Deleting them, therefore, is a natural consequence.

The Court however took a view other than the auto view. The Court refused to grant the Plaintiffs that relief. This is what Justice Gbadegbe, through whom the entire Court spoke, said:

“The said registrations were conducted under CI 72, which was the applicable legislation under which eligible citizens were registered before the 2012 elections. As the registrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of [NHIS] cards should not automatically render them void.”

In other words, the court does not believe that an act done pursuant to an unconstitutional law is necessarily and automatically void. It is exactly this position of the Court which brings anguish to the Plaintiffs and their fans. It is also exactly this holding that has caused a second round of rumbling in the law circles.

For example, Mr. Akoto Ampaw and Prof Kwasi Prempeh, writing jointly, have described the Court’s position as “profoundly extraordinary and deeply troubling.” To support their accusation, the two gentlemen, unfortunately, conflated Articles 1 and 2 of the Constitution and argued as follows:

“If the Constitution is the supreme law of Ghana; and if it lies within the exclusive province of the Supreme Court to declare that a law is unconstitutional; then, a law declared to be unconstitutional by the Supreme Court, is definitively void and, therefore, of no legal effect.”

As if that was not enough, the two gentlemen went further to make an extraordinarily-large claim. They find it “fanciful” that a Court would import a private law concept of ‘voidable’ into the realms of public law. Further, they assert that “[t]he concept of voidability is a concept known to contract law but completely unknown to constitutional law.”

From this, we may deduce that the auto view rest on two pillars, namely (1) under our Constitution, an act (including its consequences) is necessarily and automatically void if the law under which it was done becomes void; and (2) public law does not admit the concept of ‘voidable.’

C. THE CHECK

I wish to run a legal-validity check on each of these pillars. In other words, I will be arguing, first, that under our constitution, an act or its consequences are not necessarily or automatically void even if the law under which they were done becomes void; and, second, that public law does, indeed, admit of the concept of ‘voidable’.

The Constitution and “Void”

The beginning point of this section of the argument is that there is a difference between a law and the act which is done under the law. The drafters of the Constitution knew this too well. That is, perhaps, why they created separate Articles for them. Article 1 deals with “law” only and is placed under the scope called the ‘Supremacy of the Constitution” (see the marginal note). Article 2, on the other hand, deals with both “laws” and “acts” that are done, whether in pursuance of a law (intra vires) or without legal backing (ultra vires). Article 2, unlike Article 1, deals with ‘Enforcement of the Constitution’ (see marginal note).

By this, we may also say that the drafters of the Constitution know pretty well that proclaiming the supremacy of the Constitution is one thing and enforcing it another. The former is theoretical and desirable, requiring nothing more than a “declaration”, while the latter is functional and requires practicable “orders”. So, the relevant portion of Article 1 says that:

“The Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution should, to the extent of the inconsistency, be void.” (emphasis mine)

Here, we would notice that the provision contains the word “void” and says nothing about an act. On the other hand, however, the relevant portion of Article 2 says that:

“A person who alleges that (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

Note that this provision, which deals with ‘acts’ says nothing about ‘void.’ Rather it commands the Court to make a “declaration” to the effect that the act or law in question is indeed “in contravention of a provision of this Constitution.” In other words, while a law which is inconsistent with the Constitution is automatically “void” and is of no effect, acts done under that law may not be automatically void.

Some may attempt to argue that this bifurcation is extremely fine and merely artificial. However, there are a number of substantial functional and practical reasons that may be advanced in support of the bifurcation. i.e. reasons why a law may be void while an act done under it would not be void without further steps. For example, a situation where innocent third parties have already acquired rights under the void law, those rights are not automatically extinguished merely because the law is declared void. This falls in line with the rule against destruction of accrued rights.

Further, the bifurcation also explains why lawyers always separate declaratory-reliefs from order-reliefs. Every lawyer knows (or, perhaps, ought to know) that seeking an order-relief requires a lot more consideration than declaratory-reliefs. For example, one may seek a declaratory relief that Justice Cecilia Koranteng-Addow (may her soul rest in peace) right to life was violated. However, an order-relief which seeks to bring the perpetrators of the alleged violation to book or which seeks an award of compensation will, definitely, require more consideration (including a consideration of Section 35(2) of the Transitional Provisions, proof of next of kin, public policy, etc.) than the factors that are considered in granting the declaratory relief.

Finally, one may, upon a careful reading, also notice that this bifurcation lies at the heart of Article 2(2). Article 2(2) confers discretion on the Court to, notwithstanding whatever declaratory reliefs they have granted, “make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.” The million-cedi question, therefore, is: if everything done under a law is automatically void (by reason of unconstitutionality) and is of no effect, why, then, will the Constitution give some discretion to the Court to make such orders and give such directions as it may consider appropriate”?

This reasoning was sufficiently stated in the recent case of Dery v Tiger Eye (2016), where the Court, in considering “what consequences that flow from the violation of Article 146(8)” in that case, recalled its position in the Election Petition case (2013) that “it is not every violation of a constitutional provision which results in the annulment of the action.” In Dery, the Court went further to state that the consequences of unconstitutionality require more consideration than the declaration of the unconstitutionality itself. It says:

“Apart from legal considerations, there are also public policy considerations that support that general principle of law. It does not follow that a declaration that an action or inaction is unconstitutional has the effect of nullifying the action in question. The court must say it does have such an effect having regard to an express or implied provision of the Constitution or that it should have such effect in the spirit of a particular Constitutional provision, and proceed to give directions or make the appropriate consequential orders under Article 2(2) of the Constitution, 1992.”

Therefore, even though it is true that “all laws which are repugnant to the Constitution are null and void” (Marbury v. Madison, 1803.), it is equally true, even under American constitutional law, that “an unconstitutional statute is not necessarily a nullity as it may have indeterminate consequences binding on the people” (See: 16 Am. Jur. 2d., Sec. 257). Consequently, in Ghana, too, acts that are done under an unconstitutional law and their consequences are not always automatically and necessarily void as the law itself. So, like Prof Forsyth, I believe that public law acts are theoretically void but functionally voidable.

In part 2 of this article, I will attempt to assail the second pillar on which the auto view rests, namely that public law does not admit of the concept of ‘voidable.’